Charles Village Court Watch

James Cureton is charged with shooting Tanise Ervin fatally and with shooting Rashad Jenkins and Darnell Barksdale on March 12, 2011 at about 6:01 p.m. in the 1100 block of Gorsuch Avenue in Better Waverly.

This morning, defense attorney Jack Rubin stated that he did not wish to put on any witnesses.  The defendant was asked whether he wished to testify, and he stated that he did not wish to do so.  Thus, the defense rested.

Defense attorney Rubin renewed his motion for acquittal stating that there was no evidence of premeditation and that Rashad Jenkins was the only witness and had not seen who had shot him.

Assistant State's Attorney Richard Gibson stated that the defendant had raised a gun and had fired multiple times using an extended clip.  He noted transferred intent (which means that if the wrong person is hit, that fact does not nullify intent) .

Judge Fletcher-Hill noted the photo array in which Jenkins had identified Cureton and that Jenkins had seen Cureton with a gun.  He ruled that while there was no direct evidence that Cureton was a  shooter, the jury can make that determination.  Also, if one shooter had intent, it does not matter whether Cureton is a principal or an accomplice (in case there were two shooters).  The jury can infer intent and premeditation from the approach from behind with a gun.

The jury instructions will be given orally by the judge and in written form for the jury.  The state dropped a count about transportation of a gun, and there will be one count of use of a handgun in a felony or crime of violence.

After the jury came in, Judge Fletcher-Hill gave the instructions to the jury.  They must apply the law as explained to them but must decide the facts to which to apply the law.  The defendant is presumed innocent, and the state must prove guilt beyond a reasonable doubt.

The counts submitted to the jury are:
1 - first degree murder of Tanise Ervin.
2 - second degree murder of Tanise Ervin.
3 - attempted first degree murder of Rashad Jenkins.
4 - attempted second degree murder of Rashad Jenkins.
5 - first degree assault of Rashad Jenkins.
6 - second degree assault of Rashad Jenkins.
7 - attempted first degree murder of Darnell Barksdale.
8 - attempted second degree murder of Darnell Barksdale.
9 - first degree assault of Darnell Barksdale.
10 - second degree assault of Darnell Barksdale.
11 - use of a handgun in a felony or a crime of violence.

The judge now noted that an accomplice can be liable for the acts of another.  Transferred intent exists when someone intends to harm one person but harms another, e.g. if the person is a bad shot.  Concurrent intent exists when someone creates a zone of danger which includes others besides the intended victim.

Judge Fletcher-Hill also noted that the law makes no distinction between direct evidence and circumstantial evidence and that it is up to the jury to decide how much weight to give to either form of evidence.  If one looks outside and sees that it is raining, that is direct evidence.  If one sees others coming in with wet umbrellas, that is circumstantial evidence that it is raining.

Assistant State's Attorney Larai Everett now gave the summation for the state:

On November 20, 2006, James Cureton was stabbed 5 times over his body.  He went to the hospital, and you have the medical records.  A witness (whom I have chosen not to name) saw Cureton and Barksdale in a fight and saw Cureton with a bloody shirt.  BG went to the hospital with multiple stab wounds.  He waited patiently to get back at Barksdale.

The 911 tape from the incident which is the basis for this trial shows that nobody wanted to talk to police.  Two victims testified.  Darnell Barksdale said that he didn't want to be in court and said that the shooter was 6'5" and darker.  He wants to settle things outside.  But he does know.  Tanise was his home girl.  He was shot and shot again when he was down.  He got up and went to a porch.  He remembered where he was shot.  He asked a friend to get his phone and call some people.  He remembers all.  He has a tattoo of Tanise over his eye.  The defendant's aim did not kill Barksdale but killed Tanise.  Barksdale's inner turmoil is evident; he is stressed and did not want to be in the witness stand.

Rashad Jenkins knew exactly when he talked to Detective Brummer.  He was definite that he had been shot by BG / 2G.  He had gotten a blunt [marijuana cigarette] from Darnell.  He ran home, stored his marijuana, and came back to Gorsuch.  He saw his friend laying on the ground, bleeding and killed.

The 911 tape shows that people saw two victims and thus supports that Jenkins had run home.  He smokes weed every day.

Jenkins identified 2G / BG as the person who shot him.  He was the only one who came up with both nicknames.  Rashad knows him.  Asked whether 2G / BG was in court, he said: "Ask me another question."  Then he said no.

Officer Hemmerly testified that the casings were in one location.  Five 380 caliber casings were recovered from the scene, and a 380 caliber bullet was recovered from Tanise Ervin.  When Tanise's mother (whom everyone called Mom)  came out, he told her: "Mom, I'm sorry.  Tanise not moving."

Cureton's girlfriend testified that she saw Cureton that day at 2:30 and at 6:30.  Detective Brummer drove from the crime scene to her home in nine minutes.  The defendant was not with her at the time of the murder.  Also, a photo actually was taken on March 13, 2011.

James Cureton wanted revenge.  Rashad Jenkins wanted to do the right thing and struggled on the stand.  But don't speak, don't say.  Was 2G in the courtroom?  He put his head down, said ask another question, then said no.  "I seen 2G with a gun."

Cunningham fabricated an alibi.

Rashad Jenkins is not the whole case.  There was a stabbing in the same location in 2006, and it ended in 2011.

Every little piece is a puzzle piece.  All point to Cureton.  There is enough to support guilt beyond a reasonable doubt.  The defendant went to the scene with a loaded gun with an extended clip and raised the gun.  That is premeditation.  He wanted to shoot and kill Barksdale.

Transferred intent means that one does not get credit for bad aim.  Concurrent intent is when anyone nearby in the zone gets shot.

Every puzzle piece links back to the defendant.  Find him guilty on all counts.

After a short recess, Assistant State's Attorney Richard Gibson objected to a defense poster board, but the objection was overruled.

After the jury returned, defense attorney Jack Rubin gave his closing statement:

The defendant is innocent and has been in jail over two years.

Promises made in the opening statement are promises kept.  There is no evidence of how the shooters arrived at or left the scene.  The defendant's most prominent features are a goatee and a mustache.  A photo taken on April 3, 2011 two weeks after the shooting shows this, and he still looks the same.  But the description by Rashad Jenkins says that there was little facial hair.

There are no DNA, no fingerprints, no weapon and no surveillance tapes.  There is just one witness.

We know there were two shooters.  The casings come from two different guns.  Jenkins said that there were two shooters.  Hence, there were two perpetrators.

There is no revelation that anyone was ever charged with stabbing Cureton.  There is no evidence that the witness who claims to have seen the stabbing ever told the police what she told you.

The motive is wishful thinking.  There were five people according to Jenkins, including Tayvon.  Why is nothing said about Tayvon?

Rashad Jenkins is an admitted pothead but does not know who shot him.  This close friend of Tanise ran home to stash marijuana, and he tested positive in the hospital report.  He was more interested in stashing weed than in Tanise.  Asking you to believe Jenkins is beyond reasonable doubt.  You need a second opinion.  That is reasonable doubt.

How did the defendant know that Barksdale would be there at that time?  Barksdale was the dealer who supplied Jenkins with drugs.  Could you believe him?

The jail phone calls were cherry picked by the government.  There is no evidence of coded language.

Ms. Cunningham saw Mr. Rubin two years later and told him about photos of the defendant.  That is a legitimate mistake.  On April 11, 2012, the defendant had no idea he was charged with homicide.  He was not charged until April 25.  You would have had difficulty figuring out where you were.  To say someone who had known the defendant for 6 days would be able to figure all that out is absurd.

Mr. Rubin now showed his chart.  The gist is that if guilt is highly likely, is likely or is probable, the defendant is not guilty beyond a reasonable doubt.

The case is one witness: Rashad Jenkins.  The case is about proof.  Even highly likely is not enough.  The evidence falls short.  Cureton has a family.  Let him go back to his family.

Assistant State's Attorney Richard Gibson now gave the rebuttal:

The defense says that there were two shooters, but that is not supported by the evidence.  There were 5 bullet wounds and there were 5 casings.  It does not matter if there were two shooters.  There was a discharge the day  before, and the other casing could be an artifact.  But it does not matter if there were two shooters or one shooter.

This is not a one witness case.  Look at the defendant's own actions.  We  behave differently when we break rules.  The attempt to create a false alibi is consistent with guilt.  An innocent person would not make things up.  When arrested one month later, he remembers photos.  A jail call from 2G says the defendant is really sorry for  what happened.  His reaction to a murder charge is not to ask about who the victim is but to ask about the charging papers.

The defendant was talking in code about going to a spice store.  He called under a different person's name and SID (state identification number).  Don't ever talk about it.  Don' talk about the vanilla smell [gunshot residue smell].  The best lies are partial lies.  She [Cunningham] asked: "What's that smell?"

He doesn't know for sure if she will be loyal to him.  The case is about little details.  A call spells out Barksdale.  Would an innocent person try to spell that out?  One person had a prior history with Barksdale.  It is not over.

Barksdale pointed it all out in his own way.  He doesn't know the defendant.  The shooter was 6'5" and darker.  Yet Tanise is etched over his eye.  Barksdale wants Cureton to get off so he can handle the stabbing by himself.  He waited a long time.  Everyone waited a long time.

Jenkins was shot and Barksdale was shot.  Two days after, Jenkins saw Detective Brummer and recognized the defendant.  Jenkins' anger was fresh, and he told the truth.

Would Jenkins be in a position to recognize the shooter?  A single witness is sufficient if you believe it is sufficient.

Rashad went to the store all the time.  Cureton just had to lie in wait to get the drop on Barksdale.

Look at the puzzle even if pieces are missing.  You don't need all the answers.  When you  fill in the blanks, you know what it is.

Weigh all the facts, how and what was said.  There is no reasonable doubt.  The defendant made several choices that day.  He chose to harm all in the area.  Hold him accountable.  Find him guilty.

After a lunch break, the jury deliberated starting at 2 p.m.  At 5:52, the judge stated that he had received a note that the jury could not make a decision.  The attorneys said that the jury had not been out very long.  The jury was brought into the courtroom and told to break for the day.  They will return at 9:30.

My comments: The jury has not deliberated for very long, and I certainly have seen many cases reported in which a jury said that it was deadlocked, was ordered to deliberate some more and reached a verdict.  Hence, I am not concerned at this point about the deadlock.

I went into great detail about the summations to give readers the flavor of what is really going on.  I thought that all three attorneys did an excellent job with what they had.  The summation and rebuttal by the prosecution invite the jury to view the case as a puzzle with pieces that fit together to point to guilt, and it is easy to see it that way.  After hearing those (and I now have a clearer view of the jail calls), I can view it as the puzzle that the prosecutors ask the jury to view it as.  We will see what happens.

In 2002 in Connecticut, Michael Skakel who is a nephew of Ethel Skakel Kennedy (the widow of Robert F. Kennedy), was convicted by a jury of murder.  It was widely viewed that the defendant would have been acquitted but for an excellent closing statement by the prosecutor.  Indeed, it was reported at the time that the closing statement would probably be shown to law school classes as an example of how to do it.  I am not familiar with what exactly was in that closing statement, but Ms. Everett's closing and Mr. Gibson's rebuttal have made me view this case as more than a one witness case.  My own leaning is toward a guilty verdict although I can easily see how a jury might go either way.

Let us hope for a verdict tomorrow.